Tocci on Legal Rights for Disabled & Premature Infants

This paper puts forth principles to solidify the theory that if a Baby Doe case were to appear before the Supreme Court today, the decision would indeed establish legal protections for disabled and very premature newborns. It begins by describing the early Baby Doe cases and subsequent enacted federal regulations, (often referred to as the “Baby Doe regulations”), and elucidate why the approach taken was truly a backwards approach, rather than a “rights-first approach”, the latter of which would successfully address the same problems it sought to solve, while being more acceptable by the legal and medical communities. Next, this paper analyzes the constitutional basis which exists for establishing legal protections for infants and an application of factors from prior disability cases. It explains the problem of the inaccurate use of the term “parental autonomy”, which would be rectified by instilling infant rights and applying an altered best interests approach. It then examines the states’ ability to uphold those rights and regulate parental choice. A tort theory basis is also provided to establish infant legal protections. The paper also explicitly distinguishes the sole case advanced as the best argument against newborn rights; affirms the importance of the massive Neonatal Intensive Care Unit (hereinafter, NICU), technology, and advancements in neonatal medicine since that case; and uses two actual and current NICU cases to do so. Lastly, the paper details additional dangers if infant rights are not legally protected.